Free speech defined as whatever anyone wants to say has got us here. A Chatbot sits in the White House. It’s not a theoretical question anymore whether the marketplace of ideas works and whether good ideas win out over bad ones. It all just got real and the answer is no.

But the answer is obviously not to shut down the right. There’s a reason freedom of speech is right up in the First Amendment. A society that loses its grip on reality is not long for this world, and self-serving groupthink among elites has doomed societies throughout history. The idea behind free speech is to avoid that fate. If everybody can provide insight, the truth is likelier to come out than if just a few people are looking. Many heads are better than one.

(I know. There are a mountain of issues to unpack in that too-simple summary. “What is truth?” for one. I’ve explored this a bit in Rethinking Democracy and in a number of posts on this site, listed at the end.)

The point here is that as a matter of practical fact free speech is foundational and the current approach is not working. We need to fix it. We don’t know how many dumpsterfires civilization can stand and it would be nice not to find the breaking point the hard way.

Fixing it requires identifying what’s wrong, and without an exhaustive list there are at least a couple of obvious reasons why the current approach to free speech does not work. The so-called marketplace of ideas assumes we’ll study all the ideas out there, weigh the evidence in favor of each, and come to the logical conclusion about which ideas are best.

There is so much wrong with that, it’s hard to know where to start. It’s impossible to study all the ideas out there. Who would have the time? Leave aside all objections about insufficient education, or intelligence, or poor presentation in the media, the simple limitation of time is enough to make nonsense of the assumption. Everything else could be perfect, and the time limits mean it still could never work.

Then there’s the psychological factor that people hate to be wrong. That means rethinking one’s opinion is much less likely to happen than forming an opinion to start with. Reserving judgment is difficult — both scholarship generally and science specifically are simply years of training in how to reserve judgment — and it’s the last thing we humans are naturally good at.

So if there is a lot of appealing garbage in this marketplace of ideas we keep hearing about, they’re not going to give way to the good ideas hiding in the back stalls. On the contrary, once people have heard it and thought it sounded plausible, they don’t want to re-examine it.

And that gets us Chatbots in the White House.

So what to do? How do we stop this travesty of one of the foundational rights? How do we get past the paralysis of losing free speech because we’re so desperate to preserve it?

One obvious point to start with is who should not decide on what is covered by the free speech label. Governments are the worst arbiters. In the very epicenter of desperation about free speech, the USA, it took the Chatbot-in-Chief mere seconds to label news he didn’t like “fake.” (Or, today, Turkey blocked Wikipedia, Wikipedia, for threatening “national security.”) Corporations are appalling arbiters. Google and Facebook and Amazon and the whole boiling of them don’t give a flying snort in a high wind what kind of dreck pollutes their servers so long as it increases traffic and therefore money to them. Experts are another subset who are never consistently useful. You have the Mac Donalds who’d prefer to shut down speech they don’t like, although they dress it up in fancier words. You have the Volokhs and Greenwalds and Assanges who can afford to be free speech absolutists because they’re not the ones being silenced. And finally, crowdsourcing doesn’t work either. That rapidly degenerates into popularity contests and witch hunts and is almost as far away as corporations from understanding the mere idea of truth. (The whole web is my reference for that one, unfortunately.)

As to who should decide, I don’t know. But instead of trying to figure out the edge cases first, the ones where the decisions are crucial, maybe we should start with the easier ones. Some of the problems with free speech involve expressions which are simple to categorize or have significant consensus. So maybe it would be possible to start with the non-difficult, non-gray areas.

Hate speech. It’s not actually speech as the word is used when talking about the right. Speech and expression are about communication, but the purpose of hate speech is hurt. It’s a weapon (that happens to use words), not communication. Pretending it should be protected, like some of the absolutists do especially when “only” women are targeted, is like protecting knife throwers if they say that’s how they “communicate.”

still from Minnie the Moocher 1932

Not only that, but hate speech silences its targets. It actually takes away the free speech rights of whole sets of people. That really needs to be a in bold capitals: it takes away the right to free speech. Shutting it down is essential to preserving the right.

Hate speech can shade into art and politics and religion but, again, let’s not worry about the difficult parts.

We could try one simple approach that might make a big difference by itself. Make it illegitimate to express any physical threats to someone or to target anyone with descriptions of bodily injury.

That seems doable because I can’t think of any insight one might want to communicate that requires physical threats to get the point across. I may just have insufficient imagination, in which case exceptions would have to be made. But as a beginning in the fight against hate speech, prohibiting wishes for bodily injury seems like a fairly clearcut start.

The first-line decisions about unacceptable content could be made by machine, much as automatic content recognition now prevents us from having search results swamped in porn. The final arbiters would have to be humans of course, but at least whether or not physical harm is involved is a relatively clearcut matter.

But even such a conceptually simple standard becomes intimidating when one remembers that applying it would render entire comment sections of the web speechless. They would have to stop yelling “Fuck you!” at each other.

That’s not just a wish for someone to get laid. It gets its power from wishing rape on people, it means “get totally messed up, humiliated, and destroyed.” It is, in the meaning of the words, a wish for physical injury and it would be illegal even though everybody insists they don’t mean it.

Expecting automated content recognition to discern intent is asking too much. Expecting humans to police every comment is also impossible. So even such a small, simple (it’s only simple if it can have an automated component) attempt at reducing hate speech means whole areas of the web would have to find new ways to function. They wouldn’t like that. After all, the reason hate speech is such a massive problem is that too many people don’t want to stop indulging in it.

But it gets worse. Another aspect of hate speech is the broadcast of dehumanizing putdowns against whole classes of people. And that causes people to get so angry they start memes about how great it is to punch Nazis.

It is not great. It’s a rather Nazi thing to do. The real solution is to stop allowing hate speech and shutting that crap down. But punching is easier than figuring out how to shut it down.

The biggest problem is that making it illegal to broadcast humiliation and harm against classes of people would make 99% of porn illegal. It’s interesting how impossible it’s become to distinguish porn from hate speech. That’s because that’s what it is now. And it really should be illegal. Harming and humiliating people to get high has a name, and it’s not sex.

That means much of the moneymaking web would disappear. So I realize the idea is doomed. Free speech isn’t that important to most people.

However, in the spirit of trying to tackle the problem anyway, maybe it would be possible to get a handle on at least one aspect of broadcast hate speech, that of public figures promoting bigotry. Most of it comes from the right wing, the Limbaughs, Coulters, Spencers, Yiannopouloses, probably because it’s easier to get paid for right-wing bloviation. It’s there on the left, just feebler. They’re given platforms, even though what they have to say is known drivel, even at places like Berkeley. And that’s probably for the same reason internet giants host garbage: it brings in fame and fortune.

The fault in this case, as it is with the corporations, is in the respectable institutions providing the platform. Somehow, it has got to cease being respectable to let people spew known lies. Climate change deniers, flat earthers, holocaust deniers, pedophiles, space program deniers, creationists — everybody who is just flat out spouting drivel should not be speaking at universities, television stations, webcasts, or anywhere else except maybe at their own dinner tables. Some crap-spouters are already excluded, such as pedophiles and holocaust deniers. It’s time to apply consistently the principle that discredited garbage is not to be given a platform.

As always, I don’t know how we can enforce that. We need a list of subjects on which over 95% of scholars agree on the facts — such as all the ones listed in the previous paragraph — and then some mechanism to prevent the drivel from being promoted. Once upon a time, the Fairness Doctrine seemed to help keep that stuff in check. There was a reluctance to give a platform to trash when you knew it would be immediately shown up for what it is. Maybe something similar could work now? (I know it’s not going to happen. As I said, the real problem is that people want garbage.)

Then there’s a curious new category of hate speech, the kind where somebody insists their feelings are hurt and that’s not fair.

Free expression is a right. As such, it has to apply equally to everyone. “Rights” that are only for some are privileges and not under discussion here. The claim that hurt feelings, by themselves, without any evidence that anyone committed hate speech or any other offense, should silence others is silly on the face of it. Applied universally, that principle would mean nobody could say anything the minute anyone claimed a hurt feeling. Trying to silence others over hurt feelings is actually claiming a privilege, which is proven by how quickly it silences everyone’s right to speak.

The most strident current manifestation of this strange idea is among some members of male-to-female trans activists. They insist that any sense of exclusion they might have from any community of women could drive some of them to suicide and is hence lethal and is a type of hate speech.

Since they feel excluded at any reference to biological femaleness or womanhood, the result is that women are supposed to never talk about their own experience using common words, like “woman,” because that would be oppressive to mtf trans people.

To be blunt, that is complete through-the-looking-glass thinking. It cannot be oppressive to third parties if a group of people discuss their lives amongst themselves, or if they want to gather together. That’s called the right of assembly, for heaven’s sake. To insist it’s so hurtful as to cause suicide is indicative of a need for therapy, not of harm on the part of others minding their own business.

(Clubs of rich people with the effect of excluding others from social benefits are different matter. Social power is a factor there, which is outside the scope of this discussion. Clearly, an egalitarian society can’t tolerate closed loops in power structures.)

Hate speech, to reiterate, is the use of expressions as a weapon, not as communication. When speech is communication, the fact that it’s not addressed to a third party does not make it hate speech.

A blanket restriction on broadcasting hate speech would be a relief in many ways, but would have negative effects on research. After all, if something is true, it’s not hate speech to point it out, and it’s not possible to find out if some groups truly have negative characteristics if publication of the results is forbidden.

Just as one example: it could be worth studying why over 90% of violent crimes are committed by men. (Yes, the link goes to wikipedia. There’s a wealth of good references at the end of the article.) That doesn’t even address the gender imbalance in starting wars of aggression, which, as far as I can tell, hasn’t been studied at all. Is the issue the effect of androgens throughout life? Are the origins developmental in utero? Or does status promote a sense of entitlement to inflict oneself on others?

Violence is a big problem with huge social costs and the gender correlation is striking, so it could be a legitimate topic of research. But some people, men probably, would likely consider it hate speech. There is no automated system that could tell the difference between hate speech and a legitimate research topic about a group. One would have to rely on humans with valid and transparent methodology. Luckily, we have that very thing. It’s called peer review. It has its problems, but it works well enough that it could be used to allow research on “dangerous” topics to be published in academic journals.

Well, so much for this being a short piece. And all I’ve achieved is to suggest a few small fixes at the edges of the most obvious problems. Automated systems could restrict unambiguously violent expressions. Large platforms need to be held accountable for their responsibilities to avoid known garbage. And manual review needs to be carved out for research.

Maybe that would be a start at delivering free speech back from the noise drowning it out.

Updated with a clarification, an image, and the linked list below May 6.

This is a brave, thought-provoking post (essay? disquisition?) on a complex and perennial problem.

I think you’re quite right that harm to women -must- be included in the concept of hate speech. However, the U.S. in particular has a history of neatly executed double standards that do the exact opposite of that, and continues that proud tradition to this very day.

Women weren’t even included in the federal statistics collected on hate crimes under the original law, although the victims of homophobic crimes were. I believe that was changed in the Matthew Sheppard law passed under Obama, but like the reluctant inclusion of women into the Civil Rights Act of 1964, women’s rights being an afterthought may mean next to no enforcement on their behalf.

And as I posted for years, but eventually gave up in the face of the willful indifference of men -and- women, women were not protected by the laws in most states that do have hate crime laws, although the testimony leading up to the 1994 VAWA act showed crimes based solely or mostly on gender have an overwhelming effect on the citizens and economy of the U.S.

(Sorry to be so vague, but I documented this meticulously when I was posting about it from about 2002 – 2009 or so, but lost track of those posts after I gave up.)

My point really is that some sort of hate crime laws are in force and speech as an indicator of hate has been used in enhancing sentencing, but for race, religion and ethnicity, not gender. The attempt to elevate women’s rights to the same plane as race, religion and ethnicity failed utterly when the Supreme Court shot down the civil rights provisions of the Violence Against Women Act in 2000.

I think this is because hate speech against women, which you demonstrated is very effective bigotry, is too useful to the economic and social caste that owns most of the resources in the U.S.: white men. As the sudden respectability of any form of sexual orientation demonstrates, the white men who own the media and control most public fora will promote the rights of any group before those of women.

Not because of any intrinsic altruism towards other oppressed groups (in the south, where race was as absolute a determination of human value as gender, the same impenetrable bigotry thrived until mitigated by an outside force), but because men’s access to their marriage market of free labor, sex and child bearing depends on the inequality of the women of their caste and it is the very last unjust power they will ever give up.

The resurrection of one-sided slurs such as whore and slut helps keep women’s sexuality penned into this market; their emotional impact helps fuel the unjust laws making sex a potential capital crime for women and no crime at all for men. The constant little electric jolts of words like “bitch” keep women penned into behaving the way men want and excuse the violence men use against women when they don’t. Such words are used freely everywhere, while the white male owned media has made their racial and religious equivalents true obscenities.

Unfortunately, this dynamic applies in every group making decisions as to what is publicly acceptable, in both the law and what shapes the law, public opinion.

Canada actually did succeed in enacting a law banning pornography as hate speech back in 2000 or so. I haven’t kept track of it since then, but there was the typical lefty outcry here, and much outrage over a case brought against a lesbian bookstore. I think it’s still in force there and hasn’t been used to muzzle Art en masse.

Not too long! Comments are never too long when they have something to say. You know more about this topic than I do, but we need all the voices we can get hammering away at the absolutists on this.

(By the way, did you read my post on gender and caste a while back? I ask because you use the word “caste” and a lot of people don’t seem to get that that’s what the whole schemier of a disaster really is. It’s got nothing to do with maleness or toxic masculinity or Y chromosomes. The unfortunate thing about using the wrong terms is is discourages men from figuring out where the problem lies. It’s not in their nature. It’s in their status.)

Anyway, what I wanted to comment was that the understanding about this last caste system is about where whites were at with respect to blacks around 1820 or so. We forget that in the literature of the time there were many, a majority, who felt blacks’ low status was naturally ordained, they were lesser, it was a kindness of whites to “take care” of them, and on and on and on. Transpose it to the way people talk about women now and most people will be nodding along saying, “Yes. Your point?”

So, yeah, we have a long way to go, and you and I won’t see it, but we know how the black slavery story ended. The inability to even imagine women as human beings will end too.

The mentality! I’m maybe halfway through that Kagan article, and she’s talking about the objection to limiting pornography being that the government shouldn’t establish viewpoints.

And then comparing it to protesting war during WWI. (I’m not saying this is her. She’s recapping.)

Shriek!

Show me a “viewpoint” in porn. It has no ideas. It’s abuse. Which is obvious to everybody except the donkeys in robes. Small wonder constitutional protections do so little for us (in all senses, the Electoral College, too, for example) when the beaks charged with applying them don’t even know what the words mean.

Although I completely agree government should not be establishing viewpoints. I even say the same thing myself in the piece above in smaller words.

Short rejoinder now, as I just messed up trying to post a longer one and it’s late – “caste” is the only word I’ve found that looks at women’s situation as human beings, neither more nor less. I had not seen your post on the subject but will look it up (via your so-excellent site services!) and get (well, sorta, sleep, etc, permitting) right on it.

Yours is one of the few voices left from my blog reading days of 2008 that is not in any way essentialist. Others seem to be gone, Anglachal, Reclusive Leftist and Tennessee Guerrilla Women among them, alas. I’m just glad to be able to read a consistent, logical viewpoint here and in your comments on various other blogs.

I read through the Kagan piece. (Now I need to go back and pay attention to all the bits I missed.) But even after I finished it, the big problem still seems to be fuzzy thinking about actual communication of ideas versus crap.

They have the concept. “Fighting words” are not protected. Neither is obscenity or incitement to riot. But they don’t seem to have understood that the general principle behind all of those is that their purpose is not communication. It’s to dump people into emotional hits.

By not understanding the difference between actual speech and hits, they’ve drowned us in this roar of hate speech, bullying, sadism, and god nows what all. I don’t have Gail Dines’ courage to find out.

I thought it was interesting chiefly as representative of judicial thinking at the time with respect to controlling hate speech, and as a picture in time of someone a long way from Supreme Justice at that point. I’m not a lawyer, but the thinking did strike me as fairly muddled too.

Going back over your post, it does seem to touch on most of thing I’ve thought or heard on the subject over the years. Even the point of television being as powerful a social institution as religion or education, when its only moral purpose is to sell soap (or more realistically, beer) – I remember that making the rounds of intense discussion several decades ago. Unfortunately, I think the reality is actually much worse than what we were afraid of at the time.

I miss Violet Socks and Anglachel too. They had both put up posts saying that they thought they’d said all they wanted to, so hopefully the continued absence is just that and they’ve made through the hard times.

Oh, and I also meant to say I had read the “Man Card” post earlier, and thoroughly agreed with your use of caste. Unalterable social and economic place that depends most often on an immutable physical trait, but not always.

I was also glad to see the reference to Marlyn Waring. “If Women Counted” turned up at a book sale here and I finally got to read it, after seeing it eulogized for years on an economics email list – it certainly didn’t disappoint!

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